Decision making: a quick guide

Some of the most common questions we get on StrokeLine involve decision making. After stroke, decision making capacity may be impaired, just at the time when lots of decisions need to be made, and this can raise lots of questions about what happens next.

All adults have the right to make their own decisions. However, if a person becomes unable to make reasonable judgements because of disability, there are laws that determine how decisions can be made for them. Although these laws vary from state to state, the general principles are the same. This information is provided as a general guide for people over the age of 18, but you may need more detailed information about the relevant legislation and authorities in your state.

Capacity

Having capacity means that we can understand and retain information given to us, and weigh up that information available to make a decision. We also need to be able to communicate our decision to others. Someone with capacity gets the final say about what happens to them, no matter their age or how unwell they are, or how wrong their decision seems to other people.

Capacity is said to be ‘decision specific’ in that someone may have capacity to make some decisions and not others. An example might be where someone has capacity to make decisions about their medical treatment, but lacks capacity to make financial decisions.

A person’s doctor can provide an opinion about capacity. Where there is uncertainty, especially where it seems the person may have capacity for some decisions and not others, neuropsychologists are often consulted. If it is found that the person does not have capacity, the state authority can provide advice on the appropriate course of action.

Medical decision making

Consent is required for any medical treatment, except where the person is unable to provide that consent and emergency treatment is needed to save their life, or to prevent serious suffering or damage to health.

State legislation sets out a ‘person responsible hierarchy’ that determines who can provide consent for medical treatment where no orders (such as enduring power of attorney or guardianship) are in place. The first person on the list who is willing and able to make medical decisions on behalf of the patient is considered the ‘person responsible’. The person’s spouse or domestic partner heads the list, followed by other relatives.

Enduring powers of attorney

Powers of attorney can only be made by someone who has capacity. This means they fully understand the nature and effect of the document they are completing and they understand their own affairs.

Enduring powers of attorney are legal documents that appoint a decision maker should the person become unable to make decisions for themselves. The power given ‘endures’ when the person loses capacity to make their own decisions, which makes them different to ordinary powers of attorney. Enduring powers of attorney can be made for personal, lifestyle and financial matters.

Guardianship and administration

Where there is no enduring power of attorney, there is an authority in each state that can appoint a decision maker. The authority will only do this where there is a definite need to do so, and when it is in the best interests of the person with the disability. A guardian can be appointed to make lifestyle or personal decisions, while an administrator can make financial decisions.

Anyone can make an application to their state authority if they are concerned that a person is not making reasonable judgements because of disability. The state authority will hold a hearing and make orders appointing a guardian or administrator if they believe it is needed, and in that person's best interests to do so. They may appoint a family member, or they may appoint someone independent like a public advocate or trustee.

Planning ahead

One thing we all know we need is a will, but it makes sense to add having an enduring power of attorney to our ‘to do’ list. You can also complete an advance directive, which allows you to spell out your decisions about end-of-life care. This will make your wishes clear to family, friends, and health care professionals.

Getting advice

If the person is in hospital, the treating team can provide advice about decision making. Where there are differences of opinion between the person, their family and the hospital, you’ll need independent advice. The hospital’s patient advocate or complaints officer can be helpful in finding mutual ground, but the state authority is the best source of independent information and advice.

There is information available online about all aspects of decision making, but check you are on the right website, as legislation and authorities are specific to each state. You can also call or email StrokeLine for advice, or go to ‘ask a health professional’ here on enableme.

Jude Czerenkowski, Social Worker, StrokeLine

StrokeLine is available Monday to Friday 9am to 5pm, Eastern Standard Time

Call 1800 787 653 or email strokeline@strokefoundation.com.au